Chapter VIII. Decisions of national tribunals

Chapter VIH

DECISIONS OF NATIONAL TRIBUNALS

1. Austria

   VIENNA REGIONAL COURT FOR CIVIL CASES

   MELANIE HOFFER v. ARTHUR WALLIGURA: JUDGEMENT OF 9 OCTOBER 1969

   Extraterritorial privileges of IAEA officials holding the grade P-5 and above under section 40 of the Headquarters Agreement between Austria and IAEA

   The appellant, Melanie Hoffer, as owner of an apartment building at Vienna, brought an action against an IAEA official holding the grade P-5 for payment of rent due under his lease. The district court had ruled that it had not jurisdiction and had declared the proceedings null and void.

   On appeal, the Vienna Regional Court for Civil Cases upheld the decision of the lower court. It pointed out that the respondent enjoyed immunity, in the sense of extraterritorialty, as shown by a statement by the Ministry of Justice to the effect that the defendant had diplomatic status. The plaintiff's submission that the immunity enjoyed by the defendant did not amount to extraterritoriality was therefore irrelevant. The statement of the Ministry of Justice was binding on the Court and even debarred it from assessing whether the defendant was entitled to claim extraterritoriality. Furthermore, the plaintiff's submission was based on section 33 of the Headquarters Agreement between Austria and IAEA,1

   whereas in fact section 39 was applicable in the case, since the defendant was an official

   holding the grade P-5.

   The plaintiff also argued that, since section 40 of the Headquarters Agreement provided for a waiver of immunity, the defendant had in fact lost his immunity. However, as long as the defendant had not requested the waiver of his immunity, his status remained unaffected. If the regulations of IAEA had imposed on him an obligation to make such a request, his relations with his employer might have been affected, but that would be no reason to infer that immunity had in fact been waived. The plaintiff further maintained that under section 40 of the Headquarters Agreement, privileges and immunities were conferred in the interests of IAEA and not for the personal benefit of the individuals themselves, but the Court ruled that that provision too could not alter the status of the respondent.

   Lastly, the plaintiff maintained that the domestic courts had jurisdiction in the dispute, since it concerned immovable property or a real right. The Court ruled that the dispute arose from a lease to which the defendant was a party not as the owner or the holder of any other real right, but as a tenant, and that there was no question, therefore, that the principle of immunity was affected.

   1 United Nations Treaty Series, volume 339, p. 110.

   In short, considering that section 39 (c) of the Headquarters Agreement accords officials having the grade P-5 and above the same privileges and immunities, exemptions and facilities as the Austrian Government accords to members having comparable rank, of the staffs of chiefs of diplomatic missions accredited to the Republic of Austria, further considering that according to a statement by the Ministry of Justice the defendant had diplomatic status by virtue of his appointment to IAEA and that the plaintiff had at no stage claimed that immunity had been waived, and finally considering that the members of the diplomatic corps enjoy extraterritoriality in Austria, the Court upheld the lower court's decision to declare the proceedings null and void on the ground of its lack of jurisdiction.

2. Belgium

   BRUSSELS APPEALS COURT

   MANDERLIER v. UNITED NATIONS AND BELGIAN STATE:

   DECISION OF 15 SEPTEMBER 1969

   The immunity from every form of legal process granted to the United Nations under the Convention on the Privileges and Immunities of the United Nations is unconditional and is not limited by article VIII, section 29 of the Convention in question, or by article 10 of the Universal Declaration on Human Rights, or by Article 105 of the United Nations Charter

   The Court heard an appeal from a judgement of 11 May 1966 a in which the Brussels Court of First Instance had declared that an action brought by the appellant for damage he claimed to have suffered "as a result of abuses committed by the United Nations troops in the Congo" was inadmissible because it was brought against the United Nations.

   The Appeals Court rejected the arguments already invoked by the appellant in the Court of First Instance, pointing out (1) that the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, which had the force of law in Belgium, in no way made the immunity from every form of legal process granted to the United Nations conditional upon the latter's respect for the obligations imposed upon it by other provisions of the same Convention, more particularly article VIII, section 29, which states that the United Nations "shall make provisions for appropriate modes of settlement of ... disputes of a private law character to which the United Nations is a party", 3 and (2) that although it was true that article 10 of the Universal Declaration of Human Rights states that everyone is entitled to a hearing by a tribunal, it was also true that the Declaration was not legally binding and could not alter the rule of positive law constituted by the principle of immunity from every form of legal process formulated in the Convention of 13 February 1946.

   With regard to the argument that Article 105 of the United Nations Charter limited the privilege of immunity to the minimum necessary to enable the United Nations to fulfil its purposes, the Court replied that in acceding to the Convention of 13 February 1946, the signatories of the Charter had defined the necessary privileges and immunities and that the courts would be exceeding their authority if they were to arrogate to themselves the right

   2 See Juridical Yearbook, 1966, p. 283.

   3 For the settlement of the appellant's claim, see Exchange of letters constituting an Agreement between the United Nations and Belgium relating to the settlement of claims filed against the United Nations in the Congo by Belgian nationals. New York, 20 February 1965 (United Nations, Treaty Series, vol. 535, pp. 197-203; Juridical Yearbook, 1965, pp. 39-40).

   of determining whether the immunities granted to the United Nations by that Convention were or were not necessary.

   The Court formulated the following conclusion: "... it must be admitted that in the present...